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The second room of the Constitutional Court declared inadmissible the request presented by the Carabineros General (R), Iván Whipple, accused by the regional prosecutor of Magallanes, Eugenio Campos, in the framework of the investigation for the institutional mega-fraud of more than $ 30 billion. The lawyers of the exalted officer They wanted the case to be paralyzed while the alleged unconstitutionality of article 370 of the Code of Criminal Procedure was discussed. that prevents them from appealing before the Court of Appeals after an unfavorable resolution of the Seventh Court of Garntía de Santiago.
By five votes to zero, the room made up of the ministers Gonzalo García, Cristián Letelier, Nelson Pozo, Miguel Ángel Fernández and the president of the TC María Luisa Brahm they rejected that the libel should go ahead in its processing and – therefore – they did not suspend the case that is in the pre-trial stages. In fact, Whipple’s defense came to challenge the rule that prevents him from appealing before the appeals court after the court of first instance rejected the request by General (R) to separate his case from the rest of the 32 investigated policemen and have a separate oral judgment.
The lawyers of the exalted official of the Carabineros had asked the Seventh Court of Guarantee to the accusation against him was separated and an order of opening was dictated different from the rest of those formalized in this investigation, which was denied by the guarantee judge. Whipple then alleged before the TC that article 370 of the Code of Criminal Procedure violated his right to a fair and rational procedure as guaranteed by the Constitution because it prevents you from appealing and that the superiors of that magistrate can review the petition.
In the discussion and prior to resolving the inadmissibility of this requirement, the TC notified the other parties. On one side the Public Ministry requested the rejection of the appeal and that the processing of the case not be suspended, alleging that there was no pending management since the self-opening of the oral trial had already been ruled. He added that Whipple is accused in an investigation that involves thirty ex-officers and non-commissioned officers of the Carabineros in a millionaire fraud and that he is part of the leadership accused of this embezzlement.
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The State Defense Council (CDE), meanwhile, also asked that the criminal process not be suspended. “It is important to note that there are 31 accused defendants in the investigation, so that a possible suspension of the procedure not only affects or understands the interests of the defendant Whipple, but unfailingly the rest,” the Treasury said in a letter.
Even the Public Criminal Ombudsman, who represents another of the ex-generals involved in the case, Flavio Echeverría, took part and asked that the case not be paralyzed.
For the judges, there were no overt arguments that would account for a constitutional conflict, and the judgment highlights the autonomy of the Public Ministry and the powers of the guarantee judge in the stages prior to the oral trial.
“When the Public Ministry formulates various accusations that the judge considers appropriate to submit to the same oral trial, and as long as this does not prejudice the right to defense, he may unite them and decree the opening of a single oral trial, if they are linked by referring to the same fact, the same accused or because the same evidence should be examined, “cites the failure. It adds that “the guarantee judge may issue separate opening proceedings for different facts or different defendants that are included in the same accusation, when, if known in a single oral trial, could cause serious difficulties in the organization or the development of the judgment or detriment to the right of defense, and provided that this does not imply the risk of provoking contradictory decisions ”.
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